The 5th COVID-19 Protection Measures Ordinance in force from November 15th to 21st, 2021, which provided for a lockdown for the unvaccinated and for those who had not recovered and provided for 2G proof for certain locations, was neither illegal nor unconstitutional. This decision from the most recent deliberations of the Constitutional Court was served on the parties to the proceedings today.
In her application, a woman from Vienna argued that individual provisions of the ordinance were illegal. A lockdown may only be imposed if this measure to contain the pandemic is “essential” “to prevent an imminent collapse of medical care or similar emergency situations” and other, less drastic restrictions are not sufficient (§ 6 Para. 1 COVID-19 Measures Act). According to the applicant, these requirements are not met: According to the current state of science, even fully immunized people could become infected with the virus and infect others. For the same reason, it is also not objectively justified to make access for customers to shops and restaurants, for example, dependent on 2G proof. The fact that tested persons were not allowed to enter such establishments also violates the principle of equality.
The ordinance documents the epidemiological situation and scientific findings, in particular about the delta variant of COVID-19 that was prevalent at the time and about its incidence. Against this background, the Federal Minister of Health could reasonably assume in mid-November 2021 that non-immunized people have a significantly increased risk of infection and transmission as well as a significantly increased risk of a severe course of the disease, and the exit restriction for non-immunized people to prevent the spread of COVID -19 and the overload of the healthcare system. Furthermore, there is no objection to the Minister of Health if, in view of the high number of new infections every day and the tense situation in the hospitals, he did not consider the (mere) presentation of a negative PCR test result to be a milder means of averting the predicted system-critical burden on the health system, but considered a full-day exit restriction for people without 2G proof to be essential from November 15, 2021.
With regard to the fundamental right to private and family life, numerous exceptions to the initial regulation were also provided for; the initial regulation was therefore proportionate in an overall view.
The Constitutional Court also has no concerns about the entry and entry restrictions, which only applied to people without 2G proof from November 15 to 21, 2021. The Minister of Health explained, among other things, that the mask requirement introduced on November 8, 2021 in retail premises was not sufficient to bring the rapidly increasing growth in new infections under control.
The distinction between those who have been vaccinated and those who have recovered on the one hand and people without 2G proof – i.e. those who have been tested – on the other hand does not violate the principle of equality. The COVID-19 Measures Act provides that such unequal treatment must be based on scientifically justifiable assumptions about significant differences in relation to the further spread of COVID-19. This was understandable in the case of the 5th COVID-19 Protection Measures Ordinance. The Minister of Health was also not unobjective when he considered the conduct of tests alone to be unsuitable for averting the predicted system-critical burden on the health system.